Monday, January 16, 2017

A Fair Report of Your Own Complaint Is Still a Fair Report

Healthsmart Pac., Inc. v. Kabateck, No. B264300 (D2d1 as modified Jan. 10, 2017)

This is an appeal of a granted anti-SLAPP motion arising from allegations that some plaintiff lawyers defamed a hospital when they gave statements about the litigation in the press. Unsurprisingly, the order is affirmed.

In the underlying case, Client sued Hospital and its owner for engaging in a bunch of a corrupt schemes that allegedly resulted in an unapproved or counterfeit surgical screws being implanted in her spine. Plaintiff’s Attorneys (Defendants here) gave a television interview, explaining that they sued the Hospital for using counterfeit screws in Client and many others while engaging in a widespread pattern of kickbacks and bribes in order to get away with it. Hospital now claims these statements were false and defamatory, and sued Attorneys for making them. Attorneys filed an anti-SLAPP motion, which the trial court granted.

As with any anti-SLAPP motion, t
he first question is whether the claims against Attorneys arise from in protected activity, as that term is defined in Code of Civil Procedure 425.16(b)(1) and (e)(1)–(4). One might expect the analysis to focus on subsection (e)(2), which deals with, among other things, statements made “in connection with” issues that are being reviewed in litigation. But the court instead addresses the issue under (e)(4), a catachall that applies to any other conduct in furtherance of speech or petitioning rights, so long as it is in connection with a public issue or issue of public concern. 

There’s not much debate about the “in furtherance” requirement, which is probably right. Instead, the key dispute turns on whether the issues addressed by Attorneys’ interview were issues of public concern. The court holds that they were. Or at least most of them.

After reviewing—and expressing some frustration about—the various amorphous definitions of “public interest” and “public issue,” the court finds helpful an earlier case that says statements that satisfy the test fall into three general baskets, involving: (1) “a person or entity in the public eye”; (2) “conduct that could directly affect a large number of people beyond the direct participants”; or (3) “a topic of widespread, public interest.” The court also cites another case that suggests five “guiding principles” that drive the issue:
(1) public interest does not equate with mere curiosity; (2) a matter of public interest should be something of concern to a substantial number of people, not merely a matter of concern to the speaker and a relatively small, specific audience; (3) there should be some degree of closeness between the challenged statements and the asserted public interest; (4) the focus of the speaker’s conduct should be the public interest rather than a mere effort to gather ammunition for another round of [private] controversy; and (5) those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure.

The court then employs these principles to find that almost all of the Attorneys’ statements count under the test. That said, the statements particular to Client in the underlying case—that she had an unapproved medical device implanted in her spine—likely didn’t satisfy the test. But instead of letting claims based on that statement stand while striking the others—the approach recently adopted by the Supreme Court in Baral—the court finds that the whole claim meets the arising from test.

The probability of success element in the second prong is tied to the fair reporting privilege under Civil Code § 47(d). It privileges against all liability “fair and true” statements in the media regarding the the events of a judicial proceeding. Although the privilege is usually invoked for statements by the media, it also protects statements to the media, at least under certain circumstances. 

Generally speaking, statements to television reporters about the contents of a a filed complaint meet the test. Claiming otherwise, Hospital cites a case that stands for the proposition that someone’s media statements about his own prior police report don’t cut it. While that might be true—although the cited case seems to be an outlier—the analogy fails to hold for reporting based on an actually filed civil complaint. A police report doesn’t become an actual
judicial proceeding until the DA decides to press charges, so it might be too attenuated to litigation to fall within the privilege. But that’s not true as to the filing of a civil complaint with a court—a key event in litigation itself.

As to the “fair and true” requirement, it is not a measure of the objective truth of the statement. Instead, it asks whether the report is a generally accurate description of the proceeding described. So, for instance, an accurate report of perjured testimony is still privileged. 

Here, while the Attorneys’ statements might not have conformed to Hospital’s version of the facts, they did accurately summarize the allegations in the complaint. And it was clear from context that the Attorneys’ statements were just that—summaries of their allegations. An objective reader wouldn’t view their statements as making complaint-independent claims that the allegations were, in fact true. That is all the privilege requires.

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